Legislative Production Research Articles

English

Inspired by Luhmann’s concept of autopoiesis, this article will critically assess Angola’s process of political transition towards democracy by focusing on 2008 legislative elections. It aims to demonstrate that the development of the Angolan electoral process revealed the strategies by which the political hegemony of the MPLA constructed the necessary pre-conditions in order to secure its viability,  that is, its ‘conservative adaptation’. A significant part of power (re)production strategies employed the formal mechanisms made available by the resources of the democratic framework. These mechanisms were featured mainly in state institutions and symbolic and discursive practises. At the level of the legal state institutions, one finds an exorbitant and frequently opportunistic legislative production characterized by numerous contradictions. This juridical production allowed the crystallization and effectiveness of the power system decisions even, or better yet, especially when there was a strong disagreement. The case of the National Electoral Commission (NEC) is in this regard, particularly instructive. On the level of the discursive and symbolic practises, the references to the legal state, state institutionalization and institutional normalization were subjected to rival interpretations by different political actors. In moments where tensions were greater, this radicalisation led to a moralisation of the discourse, turning the political debate into a moral classification of its participants. Therefore these references operated as self-legitimization semantics which, in the face of divergence, can be characterized by a certain moralization of the political discourse.   Key words: National Electoral Commission, legislative elections, Angolan political transition.

The EU's Footprint in Swiss Policy Change: A Quantitative Assessment of Primary and Secondary Legislation (1999‐2012)

In this brief contribution to the debate on Europeanization, we further expand previous work on the proportion of Swiss domestic legislation that is influenced by the EU (Gava and Varone 2012). In so doing, we focus on questions of considerable normative implications: To what extent are policy changes traceable in legal reforms “infiltrated” by the EU? Is the EU's footprint higher in primary legislation (enacted by Parliament) or in secondary legislation (enacted essentially by the Executive)? Do these linkages result from bilateral agreements (i.e. direct Europeanization) or indirect Europeanization processes? How do policy sectors differ in this regard?

Évaluation du risque de récidive : de la nécessité d’une evidence-based expertise

Prevention of recidivism is a growing concern for lawmakers, which has led to an intensive legislative production for 15 years. Risk assessment of recidivism, its corollary, is entrusted to the experts, but it also concerns practitioners of mental health and coordinator physicians designated in the framework of court-ordered treatment. This probabilistic approach has been based on the clinical judgment for a long time; it is still widely the case in France. However, scientific literature has shown the limits of clinical judgment, and new approaches have been developed, based on structured judgment and actuarial approaches. Those tools must be considered as useful supplements and not as alternatives for clinical judgment, allowing ultimately a risk level assessment, which is based on the acquired data of science. Using those tools during expert mission should be appreciated in regard to the obligations of independence and skills of the experts. In the French procedural framework, an efficient expertal model should promote the adaptation and spread of those tools, a reflection on the information sharing, and a multidisciplinary and longitudinal approach of risk.

La construcción de la diversidad jurídica desde el Estado. El proceso de oficialización de las justicias indígenas en Michoacán

En el año 2007 se crearon en Michoacán los juzgados de justicia comunal, mediante los cuales se reconocía, según el discurso gubernamental, las justicias practicadas por las comunidades y pueblos indígenas. En este trabajo se analiza este proceso, principalmente, para mostrar el accionar estatal y sus implicaciones en la producción legislativa e instalación de los juzgados comunales. También se discute la pertinencia del enfoque de los estudios recientes de la antropología del Estado, adoptado en este artículo, para mostrar la compatibilidad entre una concepción crítica del Estado y al tiempo dar cuenta de su heterogeneidad y conflictividad interna.

Pensando as Respostas Estatais às Condutas Criminalizadas: um estudo empírico dos debates parlamentares sobre a redução da maioridade penal (1993-2010)

Este artigo pretende oferecer uma descrição e uma leitura teórica dos “modos de pensar” o controle social da criminalidade e a justiça penal. O ponto de partida é a análise tanto das Propostas de Emenda Constitucional para redução da maioridade penal quanto dos debates parlamentares brasileiros sobre o tema, ocorridos na Câmara e no Senado entre 1993 e 2010. Ademais, busca ilustrar a possibilidade de utilização da “teoria fundamentada nos dados” (Grounded Theory, de Glaser e Strauss) no campo da Sociologia do Direito, através de uma pesquisa empírica voltada para o estudo da produção legislativa. Após apresentação do método sugerido, serão expostos os procedimentos e alguns resultados da pesquisa, tais como: a estruturação dos argumentos favoráveis à redução da maioridade penal; a identificação dos pontos cruciais de oposição entre os discursos favoráveis e contrários à mudança constitucional; a elaboração de quatro discursos-tipo, delineando maneiras diferentes de pensar o controle social da delinquência juvenil. Enfim, a partir do conceito de “racionalidade penal moderna” (Pires), mostra-se como, para além das posições políticas sustentadas, um amplo espectro de discursos parlamentares permanece centrado na visão hostil do autor da infração e na ideia de sanção aflitiva, referenciais dominantes em matéria de resposta social às condutas criminalizadas.

O poder no Executivo: uma análise do papel da Presidência e dos Ministérios no presidencialismo de coalizão brasileiro (1995-2010)

Qual o papel da Presidência e dos Ministérios na produção legislativa do Poder Executivo? Com base em uma abordagem transacional sobre a relação entre o Presidente e os ministros, busca-se, a partir da identificação da autoria das iniciativas legislativas do Executivo, elencar os fatores que influenciam o Presidente a delegar decisões legislativas para os ministérios ou centralizar as decisões na Presidência. As hipóteses, testadas através de um modelo logístico para eventos raros, são que o aumento da distância ideológica, do número de ministros envolvidos na decisão e da institucionalização da Presidência aumenta a chance de centralização, enquanto o aumento na força legislativa dos partidos dos ministros envolvidos diminui a chance de centralização. Os resultados indicam que tais fatores importam para entender o processo de formulação legislativa dentro do Executivo e a escolha que o Presidente faz.

Centralization Versus Decentralization of Legislative Production and the Effect of Each on the Duration of Disputes

This paper is an empirical investigation into the effects of coordination externality, due to the decentralization of laws and regulating power from the state to the regions, on the duration of disputes. To this aim we refer to Italy, whose territory is divided into twenty regions, using a data set covering eight years, from 2000 to 2007, regarding eight-hundred judgements pronounced by the Italian regional administrative courts. The most important result of our research is that in sectors where the European legislation prevails, and lower coordination externalities are observed, we find a shorter duration of disputes. In sectors of the economy more exposed to decentralized legislation, with the relevant coordination externalities, disputes tend to have a longer duration.

Quantitative and qualitative analysis on the legislative production relating to healthcare in passage in the National Congress in the years 2007 and 2008.

The Federal Constitution of 1988 allowed the National Congress to contribute towards formulation of new public policies. The objective of this study was to analyze the legislative production that dealt with health issues that was in passage in the National Congress between January 2007 and December 2008. Descriptive-exploratory cross-sectional study with quantitative and qualitative approaches, conducted in a federal university. The analysis material for the study comprised 144 draft bills that were classified and subsequently randomly evaluated by 155 professionals working within the healthcare system. The analysis showed that the Workers' Party (PT) and Brazilian Democratic Movement Party (PMDB) were the parties that presented the largest proportions of the draft bills (12.5% and 11.1%); 25.4% of the draft bills were presented by congress members with academic qualifications within healthcare and only 1.4% of the draft bills became transformed into legal regulations. In questionnaire responses, 51.5% of the evaluators did not consider the draft bills to be viable, 40.6% did not consider them to be relevant and 52.5% said that if the draft bills were not approved it would not be harmful to Brazilian society. In analyzing the data from this study, it was noted that the legislative production relating to healthcare was low and the transformation rate from draft bill to legal regulation was negligible. The results from the evaluation showed that the quality of legislative production was impaired.

The Work of Parliament in the Year of the Technocratic Government

In November 2011, when the Italian sovereign debt crisis reached its peak, the Berlusconi IV government was replaced by a “caretaker” cabinet headed by Mario Monti. Composed exclusively of non-partisan ministers, the Monti government represents a clear deviation from how parliamentary democracies are generally expected to work. This chapter analyzes the activity and functioning of the Italian Parliament during the 13 months in which Monti remained in office. Compared to the previous government, we find that, quantitatively, the legislative production between the two executives is not significantly different, although the legislative process during the Monti government appears to have been faster. Not surprisingly, from the qualitative point of view, the bills passed during the caretaker government focused mainly on economic topics. Our findings suggest that the apparent broad consensus on Monti's agenda masked important differences between the main parties that supported the government.

Review: The Europeanization of Domestic Legislatures

THE EUROPEANIZATION OF DOMESTIC LEGISLATURES The Empirical Implications of the Myth in Nine Countries. Sylvain Brouard, Olivier Costa, Thomas Konig, eds. New York: Springer, 2012. 244PP, $116.19 (cloth) ISBN 978-1-4614-1501-5Before reading this book, I used to tell my students what I suspect many readers of this review tell theirs, namely that 80 percent of national legislation in Europe originates from Brussels. Most European Union (EU) legislation must indeed be transposed into national law, either through executive decrees or ordinary laws. This means that some proportion of domestic laws are either rubberstamped by national parliaments or not even reviewed by them because they are downloaded from the EU. The proportion of 80 percent is one of those hooks we use to convince blase undergraduates that the EU is an important illustration of post-national democracy, as worthy of their interest as participatory democracy in Porto Alegre or the threat of war in the South China Sea.Fortunately, when my co-author, Julien Weisbein, and I wrote our French textbook on the EU, we did not invoke the 80 percent figure because we could not find an appropriate reference for it. Thanks to Sylvain Brouard, Olivier Costa, and Thomas Konig, we can now rely on new figures. This edited volume begins by tracing the origins of the Delors' myth, named after Jacques Delors, the former president of the European Commission, who seems to have first mentioned the 80 percent figure. It turns out that Delors was more nuanced than the myth he created. He actually said the following: 10 years, 80% of the legislation related to economics, maybe also to taxes and social affairs, will be of Community origin (emphasis mine). In the two decades that followed, commentators, from EU scholars to the Dutch Upper Chamber, expanded this prediction to include all legislation. This became a convenient truth for both Europhiles, who could thus overstate the level of supranational integration, and Euroskeptics, who could lament the creation of a European superstate.Yet even relatively cautious assertion (compared to the way I used to misquote him) turns out to be wrong. After a careful, methodical, painstaking examination of legislative production in eight EU member states (Austria, Finland, France, Germany, Italy, Luxembourg, the Netherlands, and Spain) and Switzerland, the editors of this book conclude that the proportion of domestic laws that have been adopted as a result of EU pressures ranging from six percent (in the late 1980s) to 29 percent (in the 2000s) - an upward trend, to be sure, but not quite reaching 80 percent. Furthermore, this book shows that national parliaments still scrutinize and amend EU-derived laws a great deal more than we would expect. There is, according to several contributors, no evidence that national executive power is growing at the expense of legislative power as a result of Europeanization (although it may grow because of other factors). This point suggests that the departmentalization hypothesis, according to which national parliaments are losing their autonomy both vis-a-vis the EU and vis-a-vis their own executives, is unfounded.The book is the outcome of a rare collaborative and coordinated multinational research effort. The authors use a similar research design for each country case, and they pay a great deal of attention to the challenge of operationalizing this design in different national contexts and in different languages. …

Electoral Security and the Provision of Constituency Service

We examine the relationship between legislators’ electoral environment and the provision of constituency service in the Texas State Legislature. Using fictitious constituent requests soliciting information on voter registration and a government program, we analyze the relationship between legislators’ previous vote share and the probability of legislator response. To account for possible simultaneity bias of constituency service and election results, we employ an instrumental variables approach. In contrast with previous empirical studies, we find that legislators’ response rates to constituent requests decreases in their electoral security across a wide range of model specifications that control for legislator-specific characteristics. We also investigate how electoral security affects legislators’ provision of legislative public goods and find some suggestive evidence that electoral security increases the number of bills legislators author, but has little effect on other measures of legislative production.

Participación éxito y prioridad: un análisis macro de los equilibrios en las relaciones entre los poderes ejecutivo y legislativo en Colombia, 2002-2006

This paper examines the key characteristics of the link between the executive and the legislative branches of power during the first government of Alvaro Uribe Velez, which caused countless appraisals, highly inaccurate and questionable, with regards to the configuration of the so-called limited presidential centralism. The author discusses two variables that are considered classic for this type of studies: constitutional and party powers of the President, in order to analyze the influence of these powers over the volume of legislative production in each branch, as well as their effectiveness and efficiency as promoters of legislature.

Participación éxito y prioridad: un análisis macro de los equilibrios en las relaciones entre los poderes ejecutivo y legislativo en Colombia, 2002-2006

En el artículo se evaluarán las principales características del vínculo entre ejecutivo y legislativo, durante el primer gobierno de Álvaro Uribe Vélez, que han producido innumerables apreciaciones, altamente imprecisas y cuestionables, con respecto a la configuración del denominado centralismo presidencial limitado. Para ello se revisarán dos variables clásicas en este tipo de estudios: los poderes constitucionales y los poderes partidarios del presidente, con el fin de analizar la influencia de estos poderes sobre el volumen de producción legislativa de cada rama del poder, así como su eficacia y eficiencia como promotores de legislación.

Public opinion and policy output in the European Union: A lost relationship

The European Union (EU) is assumed to suffer from a democratic deficit. It is often posited that in the EU there is only a weak and indirect connection between public preferences and policy change. This article investigates empirically whether any relationship exists between public support for European integration and EU policy output (1973—2008). Using a new indicator of policy output — the volume of important legislation produced in a semester — I discover a surprising relationship between public support and legislative production. Employing vector autoregression (VAR), I demonstrate that public EU support Granger-causes legislative output but not vice versa, and that the relationship is strong up to the middle of the 1990s but non-existent afterwards. The effect is robust to the inclusion of indicators of the state of the economy and government preferences. In addition, I discover that the average level of EU support in the Council of Ministers follows unemployment levels with a four-year delay.

Measuring the Indirect Effect: Voter Initiatives and Legislative Production in the American States

Recent research has identified important policy differences between voter initiative states and pure representative states despite a lack of enough observable voter initiative campaigns to explain the policy differences. This article investigates the indirect effects of the voter initiative process on legislative production by estimating the number of bills enacted in the American states. The results indicate that legislators in voter initiative states enact more legislation as the difficulty in qualifying a voter initiative for the ballot decreases, as the legislature is less able to alter the effects of successful voter initiatives, and as the average number of voter initiatives that appear on the ballot increases. These results provide some statistical evidence of the indirect effect of the voter initiative and are consistent with the theory that policy differences in voter initiative states are the result of the indirect effect of the voter initiative process.

Republikanischer Staat und indigenes Land: Die Erfahrungen in der Andenregion im 19. Jahrhundert

The advent of the republican state involved the imposition of liberalism as the central value of the new institutional Latin-American order. Such a process, justified by the prestige of the European experience, was supported by the proliferation of a set of laws aimed at cancelling any reference to the colonial system. In its economic profile, the new ideology gravitated around the establishment of individual freedom of disposition over the most valued asset according to the European values of physiocracy: the land. For this reason, the process of economic consolidation led to the establishment of an increasing market in land based on individual titles to property, and to the eradication, through an exhaustive legislative production, of any obstacle to the free alienability of land. This paper illustrates, within the wider legal framework required to carry out this operation, the ideological and normative approach that altered the structure of the land tenure systems of the Andean indigenous groups during the 19th century. Our analysis will focus on the principal legal milestones enacted in four countries of the Andean area: Argentina, Bolivia, Chile and Peru, with particular regard to the experience of the Bolivian state during the period between 1825 and 1880. The study seeks to reflect about the legal transplant of possessive individualism in order to provide a critical review of the impact of the rule of law in the arrangement of the indigenous agrarian system during the 19th century.

Public Regulation and Private Lawsuits in the American Separation of Powers System

This article investigates causes of the legislative choice to mobilize private litigants to enforce statutes. It specifies the statutory mechanism, grounded in economic incentives, that Congress uses to do so, and presents a theoretical framework for understanding how certain characteristics of separation of powers structures, particularly conflict between Congress and the president over control of the bureaucracy, drive legislative production of this mechanism. Using new and original historical data, the article presents the first empirical model of the legislative choice to mobilize private litigants, covering the years 1887 to 2004. The findings provide robust support for the proposition that interbranch conflict between Congress and the president is a powerful cause of congressional enactment of incentives to mobilize private litigants. Higher risk of electoral losses by the majority party, Democratic control of Congress, and demand by issue‐oriented interest groups are also significant predictors of congressional enactment of such incentives.

Legislative Production in Comparative Perspective: Cross-Sectional Study of 42 Countries and Time-Series Analysis of the Japan Case

AbstractLegislative scholars have debated what factors (e.g. divided government) account for the number of important laws a legislative body passes per year. This paper presents a monopoly model for explaining legislative production. It assumes that a legislature adjusts its law production so as to maximize its utility. The model predicts that socio-economic and political changes increase the marginal benefit of law production, whereas low negotiation costs and ample legislative resources decrease the marginal cost of law production. The model is tested in two ways. The first approach compares the legislatures of 42 developed and developing countries. The second analyzes Japanese lawmaking from 1949 to 1990, using an appropriate method for event count time series data. Both empirical investigations support the model's predictions for legislative production.

The Dynamics of Lawmaking in a Bicameral Legislature

This article analyzes legislative performance in a nascent presidential bicameral democracy, taking Brazil as a case. The author argues that the timing and outcomes of legislative production are functions of bicameral incongruence, types of bicameralism, sequence of examination, and legislative bargaining. These hypotheses are tested using a new legislative data set from Brazil that covers over 3,000 bills submitted to the National Congress since 1988. Event history analyses of these bills show that presidential bicameral (coalitional) majorities, presidential elections, initiation by the lower house, and bills proposing provisional changes raise the chances of a bill's approval. The results also indicate that the effects of many of these variables are time dependent. In contrast, bicameral incongruence, symmetric bicameralism, and legislative elections either raise the risks of a bill's rejection or delay the timing of its approval. Economic crises increase legislative activities in general in both approving and rejecting bills.

The veto power of sub-national governments in Brazil: political institutions and parliamentary behaviour in the post-1988 period

The article analyses the veto power of territorial governments in Brazil, by examining the parliamentary behaviour of state caucuses (bancadas) as well as their institutional veto opportunities when it comes to matters related to sub-national governments’ revenues and decision-making authority over their own taxes, policy responsibilities and expenditures. The “imposition of losses” upon territorial governments characterized legislative production during the 1989-2006 period, even though these decisions were intensely negotiated. The article concludes that the decision-making centralization at the central arenas, the absence of additional veto arenas and the ease with which constitutional amendments may be approved characterize decision-making on federal issues in Brazil. Furthermore, state caucuses (bancadas) do not act as collective players, since they vote divided along party lines. These institutional factors limit the veto power of territorial governments in Brazil.